European Union Bill (HL Bill 74)

A

BILL

TO

Make provision about treaties relating to the European Union and decisions
made under them, including provision implementing the Protocol signed at
Brussels on 23 June 2010 amending the Protocol (No. 36) on transitional
provisions annexed to the Treaty on European Union, to the Treaty on the
Functioning of the European Union and to the Treaty establishing the
European Atomic Energy Community; and to make provision about the
means by which directly applicable or directly effective European Union law
has effect in the United Kingdom.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Restrictions on treaties and decisions relating to EU

Introductory

1 Interpretation of Part 1

(1) 5This section has effect for the interpretation of this Part.

(2) “TEU” means the Treaty on European Union.

(3) “TFEU” means the Treaty on the Functioning of the European Union.

(4) A reference to a treaty which amends TEU or TFEU includes a reference to—

(a) a treaty resulting from the application of Article 48(2) to (5) of TEU
10(ordinary revision procedure);

(b) an agreement under Article 49 of TEU (admission of new members).

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(5) An “Article 48(6) decision” means a decision under Article 48(6) of TEU
(simplified revision procedure).

(6) Except in a reference to “the European Council”, “the Council” means the
Council of the European Union.

(7) 5A reference to a Minister of the Crown voting in favour of or otherwise
supporting a decision is a reference to a Minister of the Crown—

(a) voting in favour of the decision in the European Council or the Council,
or

(b) allowing the decision to be adopted by consensus or unanimity by the
10European Council or the Council.

Restrictions relating to amendments of TEU or TFEU

2 Treaties amending or replacing TEU or TFEU

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in
15accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

(2) The referendum condition is that—

(a) the Act providing for the approval of the treaty provides that the
20provision approving the treaty is not to come into force until a
referendum about whether the treaty should be ratified has been held
throughout the United Kingdom or, where the treaty also affects
Gibraltar, throughout the United Kingdom and Gibraltar,

(b) the referendum has been held,

(c) 25the majority of those voting in the referendum are in favour of the
ratification of the treaty, and

(d) the Electoral Commission have issued a certificate stating whether or
not it appears to them that more than 40 per cent of the persons entitled
to vote in the referendum have voted in it.

(3) 30If the certificate issued under subsection (2)(d) states that more than 40 per cent
of the persons entitled to vote in the referendum have voted in it, the treaty
may be ratified.

(4) If the certificate issued under subsection (2)(d) states that fewer than 40 per
cent of the persons entitled to vote in the referendum have voted in it, the treaty
35may not be ratified unless—

(a) in each House of Parliament a Minister of the Crown has moved a
motion that the House approves Her Majesty’s Government’s intention
to ratify the treaty, and

(b) each House has agreed to the motion without amendment.

(5) 40The exemption condition is that the Act providing for the approval of the treaty
states that the treaty does not fall within section 4.

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3 Amendment of TFEU under simplified revision procedure

(1) Where the European Council has adopted an Article 48(6) decision subject to
its approval by the member States, a Minister of the Crown may not confirm
the approval of the decision by the United Kingdom unless—

(a) 5a statement relating to the decision was laid before Parliament in
accordance with section 5,

(b) the decision is approved by Act of Parliament, and

(c) the referendum condition, the exemption condition or the significance
condition is met.

(2) 10The referendum condition is that—

(a) the Act providing for the approval of the decision provides that the
provision approving the decision is not to come into force until a
referendum about whether the decision should be approved has been
held throughout the United Kingdom or, where the decision also
15affects Gibraltar, throughout the United Kingdom and Gibraltar,

(b) the referendum has been held,

(c) the majority of those voting in the referendum are in favour of the
approval of the decision, and

(d) the Electoral Commission have issued a certificate stating whether or
20not it appears to them that more than 40 per cent of the persons entitled
to vote in the referendum have voted in it.

(3) If the certificate issued under subsection (2)(d) states that more than 40 per cent
of the persons entitled to vote in the referendum have voted in it, the decision
may be approved.

(4) 25If the certificate issued under subsection (2)(d) states that fewer than 40 per
cent of the persons entitled to vote in the referendum have voted in it, the
decision may not be approved unless—

(a) in each House of Parliament a Minister of the Crown has moved a
motion that the House approves Her Majesty’s Government’s intention
30to approve the decision, and

(b) each House has agreed to the motion without amendment.

(5) The exemption condition is that the Act providing for the approval of the
decision states that the decision does not fall within section 4.

(6) The significance condition is that the Act providing for the approval of the
35decision states that—

(a) the decision falls within section 4 only because of provision of the kind
mentioned in subsection (1)(i) or (j) of that section, and

(b) the effect of that provision in relation to the United Kingdom is not
significant.

4 40Cases where treaty or Article 48(6) decision attracts a referendum

(1) Subject to subsection (4), a treaty or an Article 48(6) decision falls within this
section if it involves one or more of the following—

(a) the extension of the objectives of the EU as set out in Article 3 of TEU;

(b) the conferring on the EU of a new exclusive competence;

(c) 45the extension of an exclusive competence of the EU;

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(d) the conferring on the EU of a new competence shared with the member
States;

(e) the extension of any competence of the EU that is shared with the
member States;

(f) 5the extension of the competence of the EU in relation to—

(i) the co-ordination of economic and employment policies, or

(ii) common foreign and security policy;

(g) the conferring on the EU of a new competence to carry out actions to
support, co-ordinate or supplement the actions of member States;

(h) 10the extension of a supporting, co-ordinating or supplementing
competence of the EU;

(i) the conferring on an EU institution or body of power to impose a
requirement or obligation on the United Kingdom, or the removal of
any limitation on any such power of an EU institution or body;

(j) 15the conferring on an EU institution or body of new or extended power
to impose sanctions on the United Kingdom;

(k) any amendment of a provision listed in Schedule 1 that removes a
requirement that anything should be done unanimously, by consensus
or by common accord;

(l) 20any amendment of Article 31(2) of TEU (decisions relating to common
foreign and security policy to which qualified majority voting applies)
that removes or amends the provision enabling a member of the
Council to oppose the adoption of a decision to be taken by qualified
majority voting;

(m) 25any amendment of any of the provisions specified in subsection (3) that
removes or amends the provision enabling a member of the Council, in
relation to a draft legislative act, to ensure the suspension of the
ordinary legislative procedure.

(2) Any reference in subsection (1) to the extension of a competence includes a
30reference to the removal of a limitation on a competence.

(3) The provisions referred to in subsection (1)(m) are—

(a) Article 48 of TFEU (social security),

(b) Article 82(3) of TFEU (judicial co-operation in criminal matters), and

(c) Article 83(3) of TFEU (particularly serious crime with a cross-border
35dimension).

(4) A treaty or Article 48(6) decision does not fall within this section merely
because it involves one or more of the following—

(a) the codification of practice under TEU or TFEU in relation to the
previous exercise of an existing competence;

(b) 40the making of any provision that applies only to member States other
than the United Kingdom;

(c) in the case of a treaty, the accession of a new member State.

5 Statement to be laid before Parliament

(1) If a treaty amending TEU or TFEU is agreed in an inter-governmental
45conference, a Minister of the Crown must lay the required statement before
Parliament before the end of the 2 months beginning with the date on which
the treaty is agreed.

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(2) If an Article 48(6) decision is adopted by the European Council subject to its
approval by the member States, a Minister of the Crown must lay the required
statement before Parliament before the end of the 2 months beginning with the
date on which the decision is adopted.

(3) 5The required statement is a statement as to whether, in the Minister’s opinion,
the treaty or Article 48(6) decision falls within section 4.

(4) If the Minister is of the opinion that an Article 48(6) decision falls within section
4 only because of provision of the kind mentioned in subsection (1)(i) or (j) of
that section, the statement must indicate whether in the Minister’s opinion the
10effect of that provision in relation to the United Kingdom is significant.

(5) The statement must give reasons for the Minister’s opinion under subsection
(3) and, if relevant, subsection (4).

(6) In relation to an Article 48(6) decision adopted by the European Council before
the day on which this section comes into force (“the commencement date”), the
15condition in section 3(1)(a) is to be taken to be complied with if a statement
under this section is laid before Parliament before the end of the 2 months
beginning with the commencement date.

Restrictions relating to other decisions under TEU or TFEU

6 Decisions requiring approval by Act and by referendum

(1) 20A Minister of the Crown may not vote in favour of or otherwise support a
decision to which this subsection applies unless the draft decision is approved
by Act of Parliament.

(2) Where the European Council has recommended to the member States the
adoption of a decision under Article 42(2) of TEU in relation to a common EU
25defence that permits a single, integrated military force, a Minister of the Crown
may not notify the European Council that the decision is adopted by the United
Kingdom unless—

(a) the decision is approved by Act of Parliament, and

(b) the referendum condition is met.

(3) 30Where the European Council has recommended to the member States the
adoption of a decision under Article 42(2) of TEU in relation to a common EU
defence which is not covered by subsection (2), a Minister of the Crown may
not notify the European Council that the decision is adopted by the United
Kingdom unless the decision is approved by Act of Parliament.

(4) 35A Minister of the Crown may not give a notification under Article 4 of Protocol
(No. 21) on the position of the United Kingdom and Ireland in respect of the
area of freedom, security and justice annexed to TEU and TFEU which relates
to participation by the United Kingdom in a European Public Prosecutor’s
Office or an extension of the powers of that Office unless the notification has
40been approved by Act of Parliament.

(5) A Minister of the Crown may not vote in favour of or otherwise permit a
decision under Article 140(3) of TFEU which would make the euro the
currency of the United Kingdom unless—

(a) the draft decision is approved by Act of Parliament, and

(b) 45the referendum condition is met.

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(6) A Minister of the Crown may not vote in favour of or otherwise permit a
decision under Article 4 of the Schengen Protocol that removes any border
control of the United Kingdom unless—

(a) the draft decision is approved by Act of Parliament, and

(b) 5the referendum condition is met.

(7) In subsection (6) “the Schengen Protocol” means the Protocol (No. 19) on the
Schengen acquis integrated into the framework of the European Union,
annexed to TEU and TFEU.

(8) The referendum condition is that set out in section 3(2), with references to a
10decision being read for the purposes of subsection (1) as references to a draft
decision and for the purposes of subsection (4) as references to a notification.

(9) The decisions to which subsection (1) applies are—

(a) a decision under the provision of Article 31(3) of TEU that permits the
adoption of qualified majority voting;

(b) 15a decision under Article 48(7) of TEU which in relation to any provision
listed in Schedule 1—

(i) adopts qualified majority voting, or

(ii) applies the ordinary legislative procedure in place of a special
legislative procedure requiring the Council to act unanimously;

(c) 20a decision under Article 86(1) of TFEU involving participation by the
United Kingdom in a European Public Prosecutor’s Office;

(d) where the United Kingdom has become a participant in a European
Public Prosecutor’s Office, a decision under Article 86(4) of TFEU to
extend the powers of that Office;

(e) 25a decision under the provision of Article 153(2) of TFEU (social policy)
that permits the application of the ordinary legislative procedure in
place of a special legislative procedure;

(f) a decision under the provision of Article 192(2) of TFEU (environment)
that permits the application of the ordinary legislative procedure in
30place of a special legislative procedure;

(g) a decision under the provision of Article 312(2) of TFEU (EU finance)
that permits the adoption of qualified majority voting;

(h) a decision under the provision of Article 333(1) of TFEU (enhanced co-
operation) that permits the adoption of qualified majority voting,
35where the decision relates to a provision listed in Schedule 1 and the
United Kingdom is a participant in the enhanced co-operation to which
the decision relates;

(i) a decision under the provision of Article 333(2) of TFEU (enhanced co-
operation) that permits the adoption of the ordinary legislative
40procedure in place of a special legislative procedure, where—

(i) the decision relates to a provision listed in Schedule 1,

(ii) the special legislative procedure requires the Council to act
unanimously, and

(iii) the United Kingdom is a participant in the enhanced co-
45operation to which the decision relates.

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7 Decisions requiring approval by Act

(1) A Minister of the Crown may not confirm the approval by the United Kingdom
of a decision to which this subsection applies unless the decision is approved
by Act of Parliament.

(2) 5The decisions to which subsection (1) applies are—

(a) a decision under the provision of Article 25 of TFEU that permits the
adoption of provisions to strengthen or add to the rights listed in
Article 20(2) of that Treaty (rights of citizens of the European Union);

(b) a decision under the provision of Article 223(1) of TFEU that permits
10the laying down of the provisions necessary for the election of the
members of the European Parliament in accordance with that Article;

(c) a decision under the provision of Article 262 of TFEU that permits the
conferring of jurisdiction on the Court of Justice of the European Union
in disputes relating to the application of acts adopted on the basis of the
15EU Treaties which create European intellectual property rights;

(d) a decision under the third paragraph of Article 311 of TFEU to adopt a
decision laying down provisions relating to the system of own
resources of the European Union.

(3) A Minister of the Crown may not vote in favour of or otherwise support a
20decision to which this subsection applies unless the draft decision is approved
by Act of Parliament.

(4) The decisions to which subsection (3) applies are—

(a) a decision under the provision of Article 17(5) of TEU that permits the
alteration of the number of members of the European Commission;

(b) 25a decision under Article 48(7) of TEU which in relation to any provision
not listed in Schedule 1—

(i) adopts qualified majority voting, or

(ii) applies the ordinary legislative procedure in place of a special
legislative procedure requiring the Council to act unanimously;

(c) 30a decision under the provision of Article 64(3) of TFEU that permits the
adoption of measures which constitute a step backwards in European
Union law as regards the liberalisation of the movement of capital to or
from third countries;

(d) a decision under the provision of Article 126(14) of TFEU that permits
35the adoption of provisions to replace the Protocol (No. 12) on the
excessive deficit procedure annexed to TEU and TFEU;

(e) a decision under the provision of Article 333(1) of TFEU (enhanced co-
operation) that permits the adoption of qualified majority voting,
where the decision relates to a provision not listed in Schedule 1 and the
40United Kingdom is a participant in the enhanced co-operation to which
the decision relates;

(f) a decision under the provision of Article 333(2) of TFEU (enhanced co-
operation) that permits the adoption of the ordinary legislative
procedure in place of a special legislative procedure, where—

(i) 45the decision relates to a provision not listed in Schedule 1,

(ii) the special legislative procedure requires the Council to act
unanimously, and

(iii) the United Kingdom is a participant in the enhanced co-
operation to which the decision relates.

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8 Decisions under Article 352 of TFEU

(1) A Minister of the Crown may not vote in favour of or otherwise support an
Article 352 decision unless one of subsections (3) to (5) is complied with in
relation to the draft decision.

(2) 5An Article 352 decision is a decision under the provision of Article 352 of TFEU
that permits the adoption of measures to attain one of the objectives set out in
the EU Treaties (but for which those Treaties have not provided the necessary
powers).

(3) This subsection is complied with if a draft decision is approved by Act of
10Parliament.

(4) This subsection is complied with if—

(a) in each House of Parliament a Minister of the Crown moves a motion
that the House approves Her Majesty’s Government’s intention to
support a specified draft decision and is of the opinion that the measure
15to which it relates is required as a matter of urgency, and

(b) each House agrees to the motion without amendment.

(5) This subsection is complied with if a Minister of the Crown has laid before
Parliament a statement specifying a draft decision and stating that in the
opinion of the Minister the decision relates only to one or more exempt
20purposes.

(6) The exempt purposes are—

(a) to make provision equivalent to that made by a measure previously
adopted under Article 352 of TFEU, other than an excepted measure;

(b) to prolong or renew a measure previously adopted under that Article,
25other than an excepted measure;

(c) to extend a measure previously adopted under that Article to another
member State or other country;

(d) to repeal existing measures adopted under that Article;

(e) to consolidate existing measures adopted under that Article without
30any change of substance.

(7) In subsection (6)(a) and (b), “excepted measure” means a measure adopted
after the commencement of this section and resulting from a decision in
relation to which a Minister of the Crown had relied on compliance with
subsection (4).

9 35Approval required in connection with Title V of Part 3 of TFEU

(1) A Minister of the Crown may not give a notification to which this subsection
applies unless Parliamentary approval has been given in accordance with
subsection (3).

(2) Subsection (1) applies in relation to a notification under Article 3 of Protocol
40(No. 21) on the position of the United Kingdom and Ireland in respect of the
area of freedom, security and justice annexed to TEU and TFEU (the “AFSJ
Protocol”) that the United Kingdom wishes to take part in the adoption and
application of a measure proposed under any of the following—

(a) the provision of Article 81(3) of TFEU (family law) that permits the
45application of the ordinary legislative procedure in place of a special
legislative procedure;

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(b) the provision of Article 82(2)(d) of TFEU (criminal procedure) that
permits the identification of further specific aspects of criminal
procedure to which directives adopted under the ordinary legislative
procedure may relate;

(c) 5the provision of Article 83(1) of TFEU (particularly serious crime with
a cross-border dimension) that permits the identification of further
areas of crime to which directives adopted under the ordinary
legislative procedure may relate.

(3) Parliamentary approval is given if—

(a) 10in each House of Parliament a Minister of the Crown moves a motion
that the House approves Her Majesty’s Government’s intention to give
a notification in respect of a specified measure, and

(b) each House agrees to the motion without amendment.

(4) Despite any Parliamentary approval given for the purposes of subsection (1), a
15Minister may not vote in favour of or otherwise support a decision under a
provision falling within any of paragraphs (a) to (c) of subsection (2) unless the
draft decision is approved by Act of Parliament.

(5) A Minister of the Crown may not give a notification under Article 4 of the AFSJ
Protocol that the United Kingdom wishes to accept a measure to which this
20subsection applies unless the notification in respect of the measure has been
approved by Act of Parliament.

(6) The measures to which subsection (5) applies are—

(a) a measure adopted under a provision described in any of paragraphs
(a) to (c) of subsection (2), or

(b) 25a measure established under Article 81(3), 82(2)(d) or 83(1) of TFEU by
virtue of a previous decision adopted, without the participation of the
United Kingdom, under a provision falling within any of those
paragraphs.

10 Parliamentary control of certain decisions not requiring approval by Act

(1) 30A Minister of the Crown may not vote in favour of or otherwise support a
decision under any of the following unless Parliamentary approval has been
given in accordance with this section—

(a) the provision of Article 56 of TFEU that permits the extension of the
provisions of Chapter 3 of Title IV of Part 3 of that Treaty (free
35movement of services) to nationals of a third country;

(b) Article 129(3) of TFEU (amendment of provisions of the Statute of the
European System of Central Banks or of the European Central Bank);

(c) the provision of Article 252 of TFEU that permits an increase in the
number of Advocates-General;

(d) 40the provision of Article 257 of TFEU that permits the establishment of
specialised courts attached to the General Court;

(e) the provision of Article 281 of TFEU that permits the amendment of the
Statute of the Court of Justice of the European Union;

(f) the provision of Article 308 of TFEU that permits the amendment of the
45Statute of the European Investment Bank.

(2) A Minister of the Crown may not vote in favour of or otherwise support a
decision to which this subsection applies unless Parliamentary approval has
been given in accordance with this section.